Larry L. Burns, Petitioner-appellant, v. Robert G. Borg, Warden; Attorney General of the State Ofcalifornia, Respondents-appellees, 5 F.3d 535 (9th Cir. 1993)

Before: BRUNETTI, KOZINSKI and BOGGS,^**  Circuit Judges.

MEMORANDUM^*** 

Appellant Larry Burns appeals pro se the district court's denial of his habeas petition. We review its decision de novo. Grooms v. Keeney, 826 F.2d 883, 885 (9th Cir. 1987).

A. Burns claims he was denied his Sixth Amendment right to confrontation because the trial court erroneously admitted the testimony of James Edwards from the trial of Burns's codefendant. But there was no confrontation issue: This evidence was offered on the issue of Edwards's credibility, not as substantive evidence. Admission of this testimony did not rise to the level of a constitutional violation. See Dutton v. Evans, 400 U.S. 74, 87-88 (1970); Bolton v. Nelson, 426 F.2d 807, 809 (9th Cir. 1970).

B. Burns also contends the prosecution knowingly used perjured testimony when it presented Edwards's testimony. Edwards's testimony was certainly inconsistent over the course of the state proceedings. But contradictions and changes in a witness's testimony are insufficient to constitute perjury, see United States v. Flake, 746 F.2d 535, 539 (9th Cir. 1984); and they do not create an inference, let alone prove, a prosecutor's knowing use of perjured testimony. See United States v. Baker, 850 F.2d 1365, 1371 (9th Cir. 1988).

We find no violation of Burns's constitutional rights.

AFFIRMED.